The guardianship is an instrument in the German legal system that was created to appoint a legal representative in the event of a specific need for one or more natural persons who can act on behalf of the person or persons concerned if they are not able to protect their interests themselves , or an already existing legal representative (e.g. because of a self-dealing ) is excluded from representation.
What all guardians have in common is the caring nature of the legal institution, which is intended to ensure that the rights of the person concerned are exercised by a guardian . A court-appointed nurse is the legal representative of the person concerned in the area for which he was appointed - his / her area of responsibility.
In Germany, custody is basically regulated in German Civil Code (BGB) and in the law on the procedure in family matters and in matters of voluntary jurisdiction (FamFG).Of the
The custody ( cura ) has its origin in Roman law. The Cura was intended for the mentally ill (furiosi), for spendthrifts (prodigi) and for minors of age (minores). The curator should compensate for the disadvantages that result from the specific person of the foster child. It expressed itself in the fact that legal transactions of the persons who were under guardianship were pending ineffective upon conclusion and that the consent of the curator was required for them to become effective.
Definition of terms
In contrast to care , which provides a person of legal age with a carer and for an unlimited period of time in whole areas of life ( property care , administrative matters , health care , etc.), care applies to a clearly defined situation or period of time (for example a property or Health care up to the age of majority), for which an appointment of a nurse is necessary (possibly even only for the submission of a single declaration of intent , e.g. in the case of a certain contract conclusion or representation in a certain judicial procedure).
The generic term guardianship includes the cases individually regulated by law
- Fruit care for a nasciturus , d. H. an already conceived, but still unborn child ( BGB)
- Supplementary custody for a minor whose parents are prevented from exercising parental custody in some areas ( BGB), this also includes custody
- Absentee custody for adults with unknown residence ( BGB)
- Guardianship for unknown parties ( BGB)
- Guardianship for collected assets ( BGB)
- Verfahrenspflegschaft in process of voluntary jurisdiction ( FamFG ( care method ), FamFG ( housing method ), FamFG ( detention matters ))
- Litigation in litigation proceedings ( ZPO)
- Estate maintenance for unknown heirs ( , BGB)
- Infirmity custody (at the time, § 1910 BGB; was repealed on January 1, 1992 and replaced by legal care )
An official guardianship is one of the above guardianships for minors (and corpses) if the youth welfare office has been appointed as a guardian ( in conjunction with BGB, § ff. SGB VIII). In the same way, a custodianship is a custodianship that is run by an association recognized for the management of guardianship and custody ( Book VIII of the Social Code) in accordance with BGB in conjunction with Section 1915 BGB. The youth welfare office or the association have to transfer the actual performance of the guardianship tasks to one or more employees.
For the foster care the rules apply on the guardianship accordingly (§ 1915 BGB), so that in principle the family court for the arrangement and management of foster care is responsible. A guardianship for an adult is to be ordered by the guardianship court (§ 341 FamFG), a probate guardian exclusively by the probate court (§ 1962 BGB).
Compensation claims from carers
Guardianship is generally carried out on a voluntary basis , i.e. free of charge. In this case, the carer is only entitled to reimbursement of expenses ( BGB), possibly in a flat-rate form of currently (since August 2013) 399 euros per year ( BGB, JVEG ). This also applies to guardians ( FamFG). If the professional management of the guardianship is determined in the appointment resolution, the guardian also has a claim to remuneration in accordance with the Guardian Remuneration Act (VBVG). The hourly rates mentioned there (between 19.50 and 33.50 euros, possibly plus sales tax ) can be deviated from in BGB. The hourly rates will increase by 17% to € 23 to € 39.50 on July 27, 2019.
- Werner Bienwald: Guardianship, guardianship and care law in social work. 3rd revised edition. Decker & Müller, Heidelberg 1992, ISBN 3-8226-0892-0 , ( practical social work ).
- Helga Oberloskamp (ed.): Guardianship, guardianship and assistance for minors. 2nd completely revised edition. Beck, Munich 1998, ISBN 3-406-43927-6 .